>l  Uw  1    ^^  I  • 


NebraekQ—  board 
of    transpo.rtation 

report... 


TO  THE 


ARD  OF  Transportation 


UPON  THK 


MATTKE  OF  THE  STRIKE  OK  THE   HROTHERHOOnS  OK   LOCOMOTIVE   ENGINEE-RS 

AND   FIKEMEX    OF   THE   BURLINGTON    &    MISSOKRI    RIVKK 

KAILKOAn    IN    XKHRASKA. 


By  0.  P.  MASON,  Skckbtary. 


LINCOLN,  NEB.: 
STATE  JOURNAL  CO.,    PRINTERS. 

188H. 


:e^e:fo:e^t 


TO  THE 


r\ 


F  Transportation 


IPON  THK 


MATTER  OF  THE  STRIKE  OF  THE   BROTHERHOODS  OF  LOCOMOTIVE  ENGINEERS 

AND   FIREMEN   OF  THE  BURLINGTON   &   MISSOURI   RIVER 

RAILROAD  IN   NEBRASKA. 


By  0.  P.  MASON,  Shcki-faky. 


LINCOLN,  NEB.: 
STATE  JOURNAL  CO.,    PRINTERS. 

188H. 


^"^\  '^^ 

J  r 


REPORT, 


To  the  Board  of  Transportation  : 

It  seems  strange  that  in  a  free  country  such  as  ours,  so  much  con- 
fusion should  exist  in  respect  to  the  rights  of  employes  to  strike,  and 
leave  the  work  of  their  employers,  and  to  attempt  to  coerce  their  action 
in  respect  to  employing  otiiers  in  their  places.  In  this  country  it  is 
lawful,  and  it  may  be  added,  commendable,  for  any  body  of  men  to 
associate  themselves  together  for  the  purpose  of  bettering  their  con- 
dition in  any  respect,  financially  or  socially.  The  genius  of  our  free 
institutions  invites  them  to  higher  levels,  and  better  fortunes,  and 
they  may  dictate  their  own  wages,  choose  their  own  em[)loyers,  and 
serve  God  or  Mammon  according  to  the  dictates  of  their  own  con- 
sciences; but  while  the  law  accords  this  liberty  to  one  and  all  of 
them,  it  accords  a  like  liberty  to  every  other  one,  and  all  are  bound 
to  so  use  and  enjoy  their  liberties  as  not  to  interfere  with  those  of 
their  neighbors. 

All  legislation,  in  P^nglaud  and  America,  has  been  progressively 
in  the  direction  of  according  to  laborers  the  enjoyment  of  equal  rights 
with  others.  The  early  English  statutes,  beginning  with  the  middle 
of  the  fourteenth  century,  are  to  be  read  in  the  light  of  the  civiliza- 
tion of  tliat  day,  and  their  provisions,  to  us  of  the  nineteenth  century, 
harsh,  illiberal,  and  tyrannical,  were  but  the  reflex  of  the  prevailing 
opinions  and  class  distinctions  that  shajied  and  guided  the  social  and 
political  polity  of  those  days.  From  time  to  time,  however,  down 
to  1888,  this  legislation  has  been  liberalized  and  christianized,  and 
to-day  in  England,  as  here,  workmen  stand  upon  the  same  broad 
level  of  equality  before  the  law  with  all  other  avocations,  professions, 
or  classes  whatsoever,  respecting  the  disposition  of  their  labor,  and  the 
advancement  of  their  associated  interests. 


(4) 

At  the  present  time,  that  evils  exist  in  the  relations  of  capital  to 
labor,  and  that  workmen  have  grievances  that  oftentimes  call  for  re- 
lief, are  facts  that  observing  men  cannot  deny.  With  such  questions, 
the  state  and  nation  has  to  do  at  the  present  time,  but  the  courts,  as 
such,  have  no  functions  to  discharge  further  than  to  say  that  the 
remedy  cannot  be  found  in  the  boycott  or  the  strike. 

In  England,  as  here,  it  is  unlawful  for  employers  wrongfully  to 
coerce,  intimidate,  or  hinder  the  free  choice  of  workmen  in  the  dis- 
posal of  their  time  and  talents.  There,  as  here,  it  is  unlawful  for 
workmen,  to  wrongfully  coerce,  intimidate,  or  hinder  employers  in 
the  selection  of  such  workmen  as  they  choose  to  employ.  There,  as 
here,  no  employer  can  say  to  a  workman  he  must  not  work  for 
another  employer,  nor  can  a  workman  say  to  an  employer  he  cannot 
employ  the  services  of  another  workman. 

By  the  law  of  the  land,  the  Brotherhood  of  Locomotive  Engineers 
has  the  most  unqualified  right  to  work  for  whom  they  please,  and  at 
such  prices  as  they  may  please.  By  the  law  of  the  land,  the  Burling- 
ton &  Missouri  River  Railroad  in  Nebraska  has  the  same  right,  be- 
ing responsible  to  the  public  for  the  employment  of  competent 
men  in  their  respective  callings.  By  the  same  law,  the  Burlington  & 
Missouri  River  Railroad  in  Nebraska  has  the  right  to  employ 
Brotherhood  engineers  on  such  terms  as  may  be  mutually  agreed 
upon,  without  let,  hindrance,  or  dictation  from  any  man  or  body  of 
men  whatever.  They  have  the  same  right  to  employ  other  engineers 
to  conduct  their  business,  being  responsible  in  each  case  to  the  public 
for  the  competency  and  efficiency  of  the  men  so  employed  by  them, 
in  their  respective  vocations. 

Suppose  the  farmers  of  Nebraska  should  combine  and  declare  that 
no  farmer  should  employ  an  Irishman  or  a  German  to  assist  him  in 
his  labors,  unless  he  was  a  member  of  their  association,  under  the 
penalty  of  being  dubbed  a  "scab,"  and  having  his  name  paraded  in 
the  public  press  as  unworthy  of  recognition  among  his  brother  farmers, 
and  himself  brought  into  hatred,  envy,  and  contempt,  would  it  be 
called  an  innocent  intermeddling  with  the  rights  of  a  prescribed  class 
under  the  law?     The  proposition  has  only  to  be  stated  to  disclose  its 


(5) 

utter  inconsistency  with  every  principle  of  justice  which  permeates  the 
law  under  which  we  live. 

If  such  conspiracies  are  to  be  tolerated  as  innocent,  then  every 
farmer  in  Nebraska,  now  resting  in  the  confidence  that  he  may  era- 
ploy  such  assistance  in  carrying  on  his  farm  as  he  thinks  he  can  aflfbrd 
to  hire,  is  exjiosed  to  the  operation  of  some  secret  code  of  law,  in  the 
framing  of  which  he  had  no  voice,  and  upon  the  terms  of  which  he 
has  no  veto;  and  every  manufacturer  is  handicapped  by  a  system 
that  portends  certain  destruction  to  his  industry.  If  our  agricultural 
and  manufacUiring  industries  are  sleeping  upon  the  fires  of  a  volcano, 
liable  to  eruption  at  any  moment,  it  is  high  time  our  people  knew  it. 
But  hapj)ily  such  is  not  the  law  among  English  speaking  people,  and 
never  has  been  the  law. 

The  reports  of  England  and  America  are  full  of  illustrations  of  the 
doctrine  that  a  combination  of  two  or  more  persons  to  eifect  an  illegal 
purpose,  either  by  legal  or  illegal  means,  whether  such  jnirpose  be 
illegal  at  common  or  statute  law;  or  to  effect  a  legal  purpose  by  ille- 
gal means,  whether  such  means  be  illegal  at  common  law  or  by  stat- 
ute, is  a  common  law  conspiracy.  Such  combinations  are  equally 
illegal,  whether  they  promote  objects  or  adopt  means  that  are joerse  in- 
dictable, or  promote  objects  or  adopt  means  that  are  per  se  oppressive, 
immoral,  or  wrongful  to  the  rights  of  others.  If  they  seek  to  restrain 
trade  or  tend  to  the  destruction  of  the  material  })rosperity  of  the 
country,  they  work  injury  to  the  whole  public,  and  such,  doubtless, 
was  the  practical  result  of  the  strike  of  the  Brotherhood  engineers. 

These  principles  are  the  clear  deductions  of  cases  decided,  and 
breath  a  spirit  of  equality  and  justice  that  must  commend  itself  to 
every  intelligent  man.      Vide  59  Vermont,  273. 

The  Vermont  court  say,  "  The  principle  upon  which  the  cases, 
American  and  English,  proceed,  is,  that  every  man  has  a  right  to 
employ  his  own  talents,  industry,  and  capital  as  he  pleases,  free 
from  the  dictation  of  others;  and  if  two  or  more  persons  combine 
to  coerce  his  choice  in  this  behalf,  it  is  a  criminal  conspiracy.  The 
labor  and  skill  of  a  workman,  be  it  of  high  or  low  degiee,  the  plant 
of   the    manufacturer,  the  equipment  of   the  farm,  and  the  invest- 


(6) 

meiits  of  commerce,  are  all,  in  au  equal  sense,  property.  If  a  man, 
by  overt  acts  of  violence,  destroy  either,  he  is  guilty  of  a  crime.  The 
anathemas  of  a  secret  organization  of  men  combined  for  the  purpose 
of  controlling  the  industries  of  others  by  a  species  of  intimidation 
that  works  upon  the  mind  rather  than  the  body  are  quite  as  danger- 
ous, and  generally  more  effective  than  acts  of  violence.  And  while 
such  conspiracies  may  give  to  the  individual  directly  affected  by  them 
a  private  right  of  action  for  damages,  they  at  the  same  time  lay  a 
basis  for  an  indictment  on  the  ground  that  the  state  itself  is  directly 
concerned  in  the  protection  of  all  legitimate  industries,  and  the  de- 
velopment of  all  its  resources,  and  owes  a  duty  to  the  protection  of 
its  citizens  in  the  exercise  of  their  callings.  The  good  order,  peace, 
and  general  prosperity  of  the  state  are  directly  involved  in  the  ques- 
tion." 

We  may  add  another  observation  of  the  court,  "And  the  expo- 
sure of  the  legitimate  business  to  the  control  of  an  association  that  can 
order  away  its  employes,  and  frighten  away  others  that  it  may  seek 
to  employ,  and  thus  be  compelled  to  cease  the  further  prosecution  of 
its  work,  is  a  condition  of  things  utterly  at  war  with  every  principle 
of  justice  and  with  every  safeguard  of  protection  that  citizens  under  our 
form  of  government  are  entitled  to  enjoy.  The  practical  tendency  of 
such  intimidation  is  to  establish  over  labor,  and  over  all  industries,  a 
control  that  is  unknown  to  the  law,  and  that  is  exerted  by  a  secret 
association  of  conspirators,  that  is  guided  solely  by  personal  consid- 
erations, and  whose  plans,  carried  into  execution,  usually  result  in 
violence  and  the  destruction  of  property." 

Equally  strong  and  vigorous  is  the  language  of  Judge  Carpenter, 
in  State  vs.  Glidden,  reported  in  8th  Atlantic  Reporter,  890.  "It 
seems  strange,"  he  says,  "that  in  this  day  and  in  this  free  country, 
in  which  the  law  interferes  so  little  with  the  liberty  of  the  individual, 
that  it  should  be  necessary  to  announce  from  the  bench  that  every 
man  may  carry  on  his  own  business  as  he  pleases,  and  may  do  what 
he  will  with  his  own  so  long  as  he  does  nothing  unlawful,  and  acts 
with  due  regard  to  the  rights  of  others;  and  that  the  occasion  of  such 
an  announcement  should  be,  not  an  attempt  by  the  government  to  in- 


(7) 

teref'ere  with  the  rights  of  the  citizen,  nor  by  the  rich  and  powerful 
to  oppress  the  poor,  but  an  attempt  by  a  large  body  of  workiugmen 
to  control  by  means  little,  if  any,  better  than  violence  the  action  of 
their  employers." 

"  In  this  case,"  the  court  say,  "the  defendants  and  their  associates 
said  to  the  Carriugton  Publishing  Company,  'you  shall  discharge 
the  men  you  now  have  in  your  employ,  and  you  shall  hereafter  erai- 
ploy  only  such  men  as  we  shall  name.  It  is  true  we  have  no  inter- 
est in  your  business — we  have  no  capital  invested  therein — we  are  in 
no  wise  responsible  for  its  losses  and  failures,  and  we  are  not  directly 
benefited  by  its  success,  and  we  do  not  participate  in  its  profits,  yet 
we  have  a  right  to  control  its  management  and  compel  you  to  submit 
to  our  dictation.'  The  bare  as-sertion  of  such  a  right  is  startling. 
The  two  alleged  rights  cannot  possibly  co-exist.  One  or  the  other 
must  yield,  li'  the  defendants  have  the  right  which  they  claim,  then 
all  business  interests  are  alike  subjtct  to  their  dictation.  No  one  is 
safe  in  engaging  in  business,  for  no  one  knows  whether  his  business 
affairs  are  to  be  directed  by  intelligence  or  ignorance — whether  law 
and  justice  will  protect  the  busiue.-s,  or  brute  force,  regardless  of  law, 
will  control  it;  for  it  must  be  remembered  the  exercise  of  this  power, 
if  conceded,  will  be  by  no  means  confined  to  the  mode  of  employing 
help.  Upon  the  same  princi])les,  and  for  the  same  reasons,  the  right 
to  determine  what  business  others  shall  engage  in,  when  and  where 
it  shall  be  carried  on,  etc.,  will  be  demanded  and  must  be  conceded. 
The  principle,  if  it  once  obtains  a  foothold,  is  aggressive  and  is  not 
easily  checked.  It  thrives  on  what  it  feeds,  and  is  insatiate  in  its 
demands.  More  requires  more.  If  a  large  body  of  irresponsible 
men  demand  and  receive  power  outside  of  the  law,  and  over  and 
above  the  law,  it  is  not  to  be  expected  that  they  will  be  satisfied  with  a 
moderate  antl  reasonable  use  of  it.  The  exercise  of  irresponsible 
power  by  men,  like  a  taste  of  human  blood  by  tigers,  creates  an  un- 
appeasable appetite  for  more.  The  business  men  have  a  general 
understanding  of  their  riglits  under  the  law,  and  have  some  degree 
of  confidence  that  the  government,  through  its  courts,  will  be  able  to 
protect  their  right«.      Thi.<  confidence  is  the  corner-stone  of  all  busi- 


(8) 

uess ;  but  if  their  rights  lare  such  only  as  a  secret  and  irresponsible 
organization  is  willing  to  concede  to  them,  and  will  receive  only  such 
protection  as  such  an  organization  is  willing  to  give,  where  is  that 
confidence  which  is  essential  to  the  prosperity  of  the  country?" 

Space  alone  forbids  from  further  quotations  from  this  strong  opin- 
ion, and  I  must  now  content  myself  with   referring  to  the  reported 
decisions.     It  and  the  preceding  cases  cited  are  the  two  leading  cases 
in   this  country  upon  criminal  conspiracy   where   the    boycott    and 
strike  have  been  used,  and  the  able  author,  after  a  thorough  examin- 
ation of  the  subject,  concludes  as  follows:  "Workingmen  may  com- 
bine lawfully   for    their    own    protection    and    common  benefit  ;  for 
the  advancement  of  their  own  interests  and  for  the  development  of 
skill  in  their  trade,  or  to  prevent  overcrowding,  or  for  the  encourage- 
ment of  those  belonging  to  their  trade  or  to  any  other  calling,  or  for 
the  purpose  of  raising   their  wages  or  securing  a  benefit  which  they 
can  by  law,  but  the  moment,  however,  that  they  proceed  by  threats, 
intimidation,    violence,  obstruction,  or    molestation   to  secure    their 
ends;  or  where  their  object  is  to  impoverish  other   persons  or  extort 
money  from  their  employers,  or  to  ruin  their  business,  or  to  encourage 
strikes    or    the   breaches    of  contracts  among   others,  or   to   restrict 
others,  or  for  the   purpose  of  compelling  employers  to  conform    to 
their  views,  or  to  attempt  to  enforce  rules  upon  those  not  members 
of  their  association,  they  render  themselves    liable  to  indictment." 
30th  Federal  Reporter,  48. 

"  The  science  of  law,  like  every  other  science,  is  steadily  receiving 
new  terms  indicative  of  additions  and  alterations,  and  these  are  often 
originated  and  developed  by  unexpected  circumstances,  and  it  is  a 
mooted  question  whether  conspiracy  is  of  common  law  origin  or  of 
statutory  enactment  and  creation." 

Wright,  in  his  monograph  on  criminal  conspiracies,  thinks  it  had 
its  origin  in  the  Statute  of  33d  Edward  I.  In  an  early  American  case, 
that  of  the  State  against  Buchanan,  5th  Harris  &  Johnson  (Mary- 
land), 17,  decided  in  1821,  the  judge,  in  an  able  opinion,  arrives  at 
the  conclusion  that  it  is  of  common  law  origin,  and  a  similar  view 
was  also  taken   by  Judge  Johnson  in   State  vs.   Edway,  2d    Hugh 


•       (9)    • 

(S.  C),  282.  In  1831,  CLief  Justice ,  in  delivering  an  opin- 
ion in  the  House  of  Lords,  said  that  it  was  first  made  an  oifence 
under  the  common  law,  and  that  it  was  first  created  by  the  statute  of 
33d  Edward  I.  But  be  this  as  it  may,  there  is  no  evidence  of  any 
convictions  previous  to  the  enactment  of  the  statute,  and  for  nine 
centuries  after  that  the  recorded  cases  are  indeed  very  few.  As  given 
by  Wright,  from  1350  to  1800  there  were  but  sixty-seven  cases,  and 
from  1800  to  1872,  he  reports  the  trial  of  137  cases  in  the  English 
courts.  The  American  courts  are  more  prolific,  and  have  furnished 
at  least  250  cases  in  this  century  upon  the  general  subject. 

Wright  thinks,  on  a  review  of  all  the  decisions,  there  is  a  great 
preponderance  in  favor  of  the  proposition  that  as  a  rule  combination 
is  not  criminal  unless  it  be  for  acts  or  omissions  which  are  unlawful, 
or  as  a  means  to  an  end  which  would  be  criminal. 

This  theory  of  Wright's  does  not  seem  to  be  the  prevailing  one. 
The  definition  most  commonly  found  in  American  cases  is  that  given 
by  Chief  Justice  Shaw  in  the  Hunt  case,  4th  Metcalf  (Mass.),  Ill, 
decided  in  1842.  He  says,  "  Without  attempting  to  review  or  recon- 
cile all  of  the  cases,  we  are  of  the  opinion,  that,  as  a  general  descrip- 
tion, though  perhaps  not  a  precise  and  general  definition,  a  conspiracy 
must  be  a  combination  of  two  or  more  persons,  by  concerted  action, 
to  accomplish  some  purpose  not  in  itself  criminal  or  unlawlul,  by 
criminal  or  unlawful  means.  We  use  the  terms  criminal  and  unlaw- 
ful because  it  is  manifest  that  many  acts  are  unlawful  which  are  not 
punishable  by  indictment  or  other  public  prosecution,  and  yet  we 
think  there  is  no  doubt  that  a  combination  by  numbers  to  do  them 
would  be  an  unlawful  conspiracy,  and  punishable  by  indictment." 
"  Yet  it  is  clear  that  it  is  not  every  combination  to  do  unlawful  acts 
to  the  prejudice  of  another  by  concerted  action,  which  is  j)unishable 
as  a  conspiracy." 

Parsons  says  that  this  definition  has  been  very  generally  adopted. 

In  an  early  New  Jersey  decision,  and  in  the  later  decisions  of 
Massachusetts,  Vermont,  New  York,  Michigan,  Kentucky,  and 
Iowa,  it  has  been  held  that  a  conspiracy,  to  become  the  subject  of  an 
indictment,  must  be  a  conspiracy  to  accomplish  either  an  unlawful  or 


(10)      • 

criminal  purpose  by  legal  means,  or  a  purpof^e  not  unlawful  by  crim- 
inal or  unlawful  means.  State  vs.  Rickey,  4th  Halstead  (N.  J.),  292. 
Commonwealth  vs.  Werd,  7  Cush.  (Mass.),  473.  Commonwealth 
vs.  Dobbs,  2  Mass.,  566.  Commonwealth  vs.  Jndd,  2  Mass.,  329. 
Commonwealth  vs.  Eastman,  1  Cush.  (Mass.),  189.  Commonwealth 
vs.  Shedd,  7  Cush.  (Mass.),  514.  Commonwealth  vs.  Wallace,  16 
Gray  (Mass.),  222,  Alderman  vs.  People,  4  Michigan,  414.  Peo- 
ple vs.  Clark,  10  Michigan, .    State  vs.  Stevenson,  30  Iowa,  392. 

State  vs.  Keash,  40  Vermont,  113.  State  vs.  Hewett,  31  Maine, 
396.  State  vs.  Early,  12  Conn.,  101.  Lambet  vs.  People,  9  Cowan 
(N.  Y.)  579. 

In  a  later  New  Jersey  decision,  and  in  those  of  Illinois,  Pennsyl- 
vania, South  Carolina,  Maryland,  and  New  Hampshire,  it  has  been 
held  that  conspiracies  are  indictable  where  neither  the  object  nor  the 
means  are  criminal,  but  where  mischief  to  the  public  is  involved. 
State  V.  Buchanan,  5th  Harris  &  J.  (Maryland),  317.  State  v.  Burn- 
ham,  15th  N.  H.,  396.  State  v.  Parker,  43d  N.  H.,  83.  State  v. 
Glidden,  3d  Zab.  (N.  J.),  33.  State  v.  Coe,  10th  Broome,  327. 
Smith  V.  People,  25th  111.,  17.  Anderson  v.  Commonwealth,  5th 
Rand.  (Va.),  627.    State  v.  Cardoza,  11  S.  C,  195. 

The  courts  of  New  Jersey,  North  Carolina,  Texas,  and  New 
Hampshire  have  held  that  conspiracies  are  indictable  where  neither 
the  objects  nor  means  are  criminal,  but  where  injury  results  to  indi- 
viduals.    Commonwealth  V.  ,  Brightley's  Reports,  36  ;    State 

V.  Donnels,  3d  Broome  (Va.),  151.  State  v.  Young,  1st  Dev.  (N.  C), 
357.  State  v.  Earwood,  75  N.  S.,  210.  Lowrey  v.  State,  30th 
Texas,  402.  Coal  Company  v.  Coal  Company,  68  Penn.  St.,  173. 
Twitchell  v.  Commonwealth,  9th  Penn.  St.,  211.  State  v.  Storr, 
42d  N.  H.,  392. 

These  later  definitions  relating  to  the  indictability  of  conspirators, 
contain  the  general  rule  adopted  in  the  objection  to  all  strikes  and 
boycotts,  and  the  fact  of  conspiring  is  the  gist  of  the  offense.  The 
crime  is  not  the  effect  of  the  conspiracy  but  in  the  conspiracy  itself. 
People  V.  Fisher,  14  Wendell  (N.  Y.),  9.  See  the  Anarchist  case, 
12th  North-eastern  Reporter,  867. 


(11) 

The  crime  is  eiiected  the  moment  the  agreement  is  complete, 
though  nothing  be  done  in  pursuance  of  the  conspiracy.  Hazen  v. 
Common wealtli,  11  Harris  (Pa.),  362. 

In  order  to  render  the  crime  complete,  there  is  no  occasion  that 
any  act  should  be  done,  or  that  anything  should  be  developed  in  pur- 
suance or  in  consequence  of  the  unlawful  agreement.  Heames  v. 
Commonwealth,  11  Norris  (Pa.),  148.  Alderman  v.  People,  4th 
Mich.,  414.  State  v.  Burnham,  15th  N.  H.,  396.  Isaacs  v.  State, 
48th  Miss.,  234.  People  v.  Greigher,  49th  Cal.,  643.  State  v. 
Staring,  34th  Iowa,  443. 

CIVIL    LIABILITY    AT    LAW. 

As  a  general  rule,  in  all  instances  where  an  indictment  will  lie,  an 
action  for  damages  can  be  sustained.  The  principle  of  the  decisions 
heretofore  referred  to  will  be  found  applicable  in  a  large  degree  in 
such  actions.  In  the  case  of  the  Old  Dominion  Steamship  Co.  against 
McKenna,  30th  Federal  Reporter,  48,  United  States  circuit  court, 
southern  district  of  New  York,  is  one  of  the  most  recent  decisions  on 
the  subject.  Here  it  was  held  that  an  interference  with  the  lawful  busi- 
ness of  an  employer  whose  workmen  are  engaged  upon  just  and  satis- 
tactory  wages,  by  procuring  them  to  quit  work  in  a  body,  from  pro- 
curement of  persons  not  in  the  employ  of  the  same  employers,  for 
the  purpose  of  injuring  his  business,  until  he  shall  accede  to  demands 
which  he  is  under  no  obligation  to  grant,  is  actionable.  So  in  ob- 
taining or  attempting  to  enforce  a  strike  or  boycott  for  the  purpose  of 
coercing  a  compliance  with  such  demands.  Brown,  justice,  said:  "I 
have  carefully  considered  the  elaborate  argument  of  counsel,  and  ex- 
amined the  numerous  authorities  cited.  For  lack  of  time,  I  can  only 
state  my  conclusions." 

Tiie  plaintiff  was  engaged  in  the  legal  calling  of  a  common  carrier, 
owning  vessels,  lighters,  and  other  craft  used  in  its  busine&s,  and  in 
the  employment  of  which  numerous  workmen  were  necessary,  and 
who,  as  the  complaint  alleges,  were  employed  upon  terms  as  to  wages 
which  were  just  and  satisfactory.  The  defendants,  not  being  in  the 
employ  of  the  plaintiff,  without   any  legal  justification,  so   far  as  it 


(12) 

appears — a  mere  dispute  about  wages,  the  merits  of  which  are  not 
stated;  not  being  any  legal  justification — procured  plaintiff's  work- 
men in  this  city  and  in  southern  ports  to  quit  work  in  a  body,  for  the 
purftose  of  inflicting  injury  and  damage  upon  the  plaintiff  until  it 
should  accede  to  the  defendant's  demands  and  pay  the  southern 
negroes  the  same  wages  as  the  longsliore  men,  which  the  |)laintiff  was 
under  no  obligation  to  grant;  and  such  procurement  of  workmen  to 
quit  work,  being  designed  to  inflict  injury  upon  the  plaintiff,  and  not 
being  justified,  constitutes,  under  the  law,  a  malicious  and  illegal  in- 
terference with  the  plaintiff's  business,  which  is  actionable. 

After  the  plaintiff's  workmen,  through  the  defendant's  procure- 
ment, had  quit  work,  the  defendants,  for  the  further  unlawful  purpose 
of  compelling  the  plaintiff  to  pay  such  rate  of  wages  as  they  might 
demand,  declared  a  boycott  of  the  plaintiff's  business,  and  attempted 
to  prevent  the  plaintiff  from  carrying  on  any  business  as  a  common 
carrier,  and  from  using  or  employing  its  vessels,  lighters,  etc.,  in 
that  business,  and  endeavored  to  stop  all  dealings  of  other  persons 
with  the  plaintiff,  by  sending  threatening  notices  and  messages  lo  its 
various  customers  and  patrons,  and  to  the  agents  of  various  steamship 
lines  and  to  the  wharfingers  and  warehouse  men  usually  dealing  with 
the  plaintiff,  designed  to  intimidate  them  from  having  any  dealings 
with  it,  and  through  threats  of  loss  and  expense  in  case  they  dealt 
with  tiie  plaintiff,  by  receiving,  storing,  and  transmitting  its  goods, 
or  otherwise;  and  various  persons  were  deterred  from  dealing  with 
the  plaintiff  in  consequence  of  such  intimidations,  and  refused  to  per- 
form existing  contracts  and  withheld  their  former  customary  busi- 
ness, greatly  to  the  ])laintiff"'s  damage. 

These  acts  last  mentioned  were  not  only  illegal,  and  render  them 
liable  in  damages,  but  were  also  misdemeanors  at  common  law. 

Associations  have  no  more  right  to  inflict  injury  upon  others  than 
individuals  have,  and  all  associations  or  combinations  designed  to  co- 
erce workmen  to  become  members  of,  or  to  interfere  with,  obstruct, 
vex,  or  annoy  them  in  working  or  obtaining  work  because  they  are 
not  members,  or  to  induce  them  to  become  members;  or  to  prevent 
employers  from  making  a  just  discrimination   in   the   rate  of  wages 


(13) 

paid  to  tlie  skillful  and  the  unskillful,  to  the  diligent  and  to  the  lazy, 
to  the  efficient  and  to  the  inefficient;  and  all  associations  designed  to 
.  interfere  with  the  perfect  freedom  of  eni]>loyers  in  the  proper  man- 
agement and  control  of  their  lawful  business,  or  to  dictate  in  any  par- 
ticular the  terras  uj)on  which  their  l)usiness  shall  be  conducted — by 
means  of  threats  of  injury  or  loss,  by  interference  with  their  j)rop- 
erty  or  traffic,  or  with  their  lawful  employment  of"  other  persons,  or 
designed  to  abridge  any  of  these  rights — are  pro  tanto  illegal  combi- 
nations or  associations,  and  all  acts  done  in  furtherance  of  such  inten- 
tions, by  such  means,  and  accompanied  by  damage,  are  actionable. 
See  People  vs.  Fisher,  14th  Wendell  (N.  Y.),  9.  Tareta  vs.  MiGal- 
lagher,  —  Peek,  105.  Rai)hael  vs.  Everett,  2  W.  Blackstone,  1055. 
Lumley  vs.  Gye,  2  E.  L.  &  B.,  206.     Brown  vs.  11  ill.  Crocker 

vs.  Buck  &  Co.,  M.  &  G.,  205.  Gasher  vs.  Astor,  4  T.  B.  Moiu-oe, 
12.  107  Mass.,  555.  Carew  vs.  Putherford,  106  Mass.,  1.  State 
vs.  Dona,  32  N.  J.  L.,  1511.  Johnson  vs.  Mienhart.  61  How.  Prac, 
168.  16  Wallace,  36-116.  70  K  C,  601.  S.  C,  16  Am.  Rep., 
780. 

In  Town  vs.  R.  R.  Co.,  13  Tenn.,  531,  it  was  held  that  the  defendants, 
by  means  of  threats  and  intimidation,  had  driven  away  the  plaintiff's 
customers,  thus  destroying  his  trade,  and  they  liad  injured  him  by  an 
unlawful  act,  and  were  liable  to  him  in  damages,  whether  they  did  it 
wickedly  or  maliciously,  or  not,  for  it  is  unlawful  to  intimidate  or 
threaten  one's  customers,  and  a  loss  of  trade  is  the  natural  and 
approximate  result  of  such  acts. 

In  ^raj)sirick  vs.  Ramge,  9lh  Nebraska,  390,  where  eighteen  de- 
fendants, journeymen  tailors,  working  by  tiie  piece,  by  conspiracy, 
stopped  working  simultaneously,  and  returned  their  work  to  the 
plaintiff  unfinished  and  in  an  unfinished  condition,  it  was  held  that 
an  action  for  damages  w^ould  lie. 

Upon  this  point  see   fuither:     Jones   vs.  J3aker,  7   Cow.  (N.  Y.), 

455.     Hewitt    vs.   ,   75    Maine,   225.     Jones    vs.    Gater,  43 

Georgia,  331,  Bixby  vs.  Dunlap,  56  N.  H.,  475.  Baughman  vs. 
Richmond,  in  Richmond,  Virginia,  Circuit  Court,  1877.  Corey  vs. 
McGarigle,  34  N.  W.  Rep.,  522.  People  vs.  Parker,  34  N.  W.  Rep., 
720.     22  Cent.  Law  Jour.,  23. 


(14) 

Time  and  space  forbids  a  discussion  of  the  civil  liability  on  the 
equity  side  of  the  court.  So  far  we  have  expressed  no  opinion  of  our 
own,  but  simply  quoted  from  the  decisions  of  the  courts  of  last  resor^; 
of  established  reputation  and  integrity.  Tried  by  the  standard  estab- 
lished by  these  decisions,  the  evidence  taken  in  the  matter  of  the 
strike  of  the  Brotherhood  of  Engineers,  and  the  conduct  of  many  of 
them  since  the  strike,  it  is  obnoxious  to  the  principles  of  law  here 
laid  down. 

From  the  foregoing  citations  of  adjudicated  cases  the  crime  of  con" 
spiracy  has  been  known  and  recognized  by  the  English  common  law 
from  time  immemorial.  Reg.  vs.  Parnell,  14th  Co.  &  Cr.  Cases,  508 
and  516.  Its  limits  are  boundless,  and  may  be  made  to  cover  almost 
every  conceivable  agreement  to  do  an  unlawful  or  wrongful  act,  or  a 
lawful  act  by  unlawful  means. 

Chief  Justice  Caton,  in  Smith  vs.  People,  25th  III.,  17,  which  was 
an  action  for  conspiracy  to  seduce  a  maiden,  stated  the  rule,  and  the 
general  spirit  of  the  American  law,  as  follo\^s:  "Conspiracies  to  ac- 
complish purposes  which  are  not  by  law  punishable  as  crimes,  but 
which  are  unlawful  as  violations  of  the  rights  of  individuals,  have  in 
numerous  instances  been  sustained  as  common  law  offences.  The 
law  does  not  punish  criminally  every  unlawful  act,  although  it  may 
be  a  grievous  offense  to  society,  and  in  determining  what  sort  of  con- 
spiracies may  or  may  not  be  entered  into  without  committing  an  offense 
punishable  by  the  law,  regard  must  be  had  to  the  influence  which  the 
act,  if  done,  would  actually  have  upon  society,  without  confining  the 
inquiry  to  the  question  whether  the  act  might  itself  subject  the  of- 
fender criminal  punishment." 

The  question  whether  in  this  state  it  is  a  crime  for  employes  to 
conspire  to  raise  their  wages  and  otherwise  better  their  condition  has 
never  come  before  our  supreme  court,  although  the  same  question  has 
come  before  the  courts  of  other  states  in  a  number  of  nisi  pj'ius  cases, 
and  in  a  few  cases  before  the  state  courts  of  last  resort,  and  has  been 
finally  settled  in  many  of  the  states  by  statute. 

The  earliest  case,  Commonwealth  vs.  Pallas  (or  the  trial  of  the 
Journeymen   Boot  and  Shoe  Makers  of  Philadelphia,  tried   in   Jan- 


(15) 

tiary  Sessions  of  the  Mayor's  Court  of  Pliiladolphia,  1806,  reported 
by  Y.  Llovd.  See  also  Carson  on  Consj)iracy,  145.)  In  this  (;ase 
the  defendants  were  found  guiUy  of  a  conspiracy  to  raise  their  wages, 
and  this  case  was  followed  by  that  of  the  Twenty-four  Journeyman 
Tailors,  with  the  same  result. 

Of  the  ?»".s/  prius  cases,  the  most  thoroughly  considered  is  that  of 
Commonwealth  vs.  Carlisle,  2d  Brightly,  36,  tried  betore  Judge 
Gibson  of  Pennsylvania.  In  that  case,  the  defendants  were  master 
shoemakers,  and  they  had  agreed  not  to  employ  journeymen  who 
would  not  work  under  certain  wages.  They  were  arrested  and  a 
writ  of  habeas  corpus  was  sued  out  before  Judge  Gibson  to  discharge 
them  on  the  ground  that  a  combination  to  regulate  wages  was  no  of- 
fense in  Pennsylvania.  Judge  Gibson,  in  the  opinion  rendered  in  that 
case,  said,  "A  combination  is  criminal  whenever  the  act  to  be  done 
has  a  necessary  tendency  to  prejudice  the  public,  or  to  oppress  indi- 
viduals by  unjustly  subjecting  them  to  the  power  of  the  confederates 
and  giving  effect  to  the  purposes  of  the  latter,  whether  of  extortion  or 
mischief."     The  defendants  were  remanded. 

In  The  Commonwealth  vs.  Currin,  one  of  the  defendants,  an  in- 
competent man,  was  discharged  from  a  colliery,  whereupon  the  em- 
ployes struck  and  did  not  return  to  work  until  he  was  reinstated,  a 
period  of  three  weeks  or  more. 

In  the  course  of  Judge  Byron's  charge  to  the  jury  he  stated,  '*  that 
while  a  laborer  had  the  right  to  work  when,  where,  for  whom,  and 
for  such  time  as  he  may  choose,  still  he  has  no  right  to  dictate  whom 
the  employer  shall  hire.  If  none  but  persons  indicated  can  be  em- 
ployed, the  employers  are  deprived  of  the  right  of  ordinary  compe- 
tition, which  not  only  tends  to  oppress  individuals,  but  also  to 
prejudice  the  public,  and  hence  is  criminal."  The  defendants  were 
found  guilty  of  a  conspiracy  and  a  new  trial  was  denied.  68  Penn. 
St.,  173.     15  Phil.,  356. 

In  1872  and  1876  statutes  were  passed  in  Pennsylvania  abrogat- 
ing this  scope  of  the  common  law  in  that  state. 

But  enough  has  been  shown  to  clearly  establish  the  fact  that  the 
strike  of  the  Brotherhood  engineers  on  the  27tli  day  of  February 


(16) 

last,  and  their  attempt  to  dictate  who  the  railroad  company  should 
employ,  was  clearly  illegal.  The  evidence  of  one  of  the  striking 
Brotherhood  engirieers  at  McCook,  shows  that  he  went  upon  the 
engine  of  the  Burlington  &  Missouri  River  Kailroad  in  Nebraska, 
which  was  being  operated  by  an  engineer  hired  to  take  the  place  of  a 
striking  engineer,  and  oifered  the  engineer  in  charge  of  the  engine 
one  hundred  dollars  to  quit  work,  aa.d  when  he  declined  so  to  do, 
threw  him  oif  the  engine.  That  this  was  one  of  the  methods  adopted 
by  the  striking  engineers,  and  he  was  acting  for  and  on  behalf  of  the 
striking  engineers,  and  the  association  known  as  the  "  Brotherhood 
of  Locomotive  Engineers"  furnished  the  money  with  M-hich  to  induce 
the  workmen  who  took  the  places  of  the  striking  Brotherhood  to 
quit  the  employ  of  the  company.  If  this  be  so,  then  a  criminal  con- 
spiracy existed  on  the  part  of  the  Brotherhood  engineers,  and  they 
rendered  themselves  liable  for  conspiracy,  and  liable  for  the  damages 
occasioned  thereby.  It  would  seem  that  there  was  culpable  neglect 
of  duty  at  McCook  on  the  part  of  the  civil  authorities  in  protecting 
the  property  of  the  Burlington  &  Missouri  River  Railroad  in  Ne- 
braska and  preventing  interference  by  the  strikers  with  the  men  hired 
to  take  their  places.  This  was  more  apparent  at  McCook  than  at 
Red  Cloud  or  Wymore,  although  at  each  of  these  points  the  Broth- 
erhood engineers  and  strikers  carried  matters  to  extremes,  and  over- 
stepped the  bounds  of  propriety. 

In  reply  to  the  question,  "  Has  the  Burlington  &  Missouri  River 
Railroad  in  Nebraska  employed  incompetent  engineers  to  run  its  trains 
since  the  strike  of  February  27, 1888  ?"  This  question  must  be  an- 
swered in  the  affirmative.  The  strike  of"  that  date  was  along  the  whole 
line  of  the  B.  &  M.  system  in  Nebraska,  including  2,000  miles  of  rail- 
way, and  without  notice  to  the  company  or  its  officers.  In  a  single  day 
all  the  Brotherhood  engineers  and  firemen  left  its  employ  and  stop- 
ped the  wheels  of  commerce,  freight  and  passenger  traffic.  The  rail- 
road must  either  accede  to  the  demands  of  the  strikers  or  suspend 
business,  or  make  the  best  effort  to  operate  its  freight  and  passenger 
trains,  by  employing  such  men  and  help  as  it  could  get.  Its  officials 
chose  the  latter  course,  and  in  the  exigency  created  by  the  strike,  ii> 


(17) 

many  instances,  employed  men  oi'  little  praetioal  knowlLH.lge  or  expe- 
rience to  operate  its  locomotives,  or  in  the  management  and  control  of 
trains.  These  men  were  superseded  by  competent  men  at  the  earli- 
est moment  possible,  and  at  the  present  time,  May  15th,  it  is  believed 
the  operating  force  on  the  Burlington  &  Missouri  River  Railroad  in 
Nebraska  are  as  competent  and  capable  as  the  force  which  struck  on 
^the  27th  of  February  last. 

A  strike  of  large  numbers  of  workmen  who  occupy  a  (/ttai'i  public 
position  in  respect  to  their  employment,  who  in  fact  serve  the 
public  while  receiving  their  wages  Irom  a  railway  corporation  is,  to 
to  the  public,  a  calamity.  The  public  at  large  suffer  most,  and  the 
damage  and  injury  to  the  people  at  large  is  not  to  be  measured  by  the 
damage  to  the  railroad  corporation  or  the  striking  workmen. 

Stopping  the  wheels  of  commerce  suddenly  and  without  notice  on 
a  great  line  of  railway  means  great  damage  to  the  public  at  large,  and 
may  mean  death  and  starvation  to  those  who  are  dependent  upon  the 
movement  of  the  railway  trains  for  their  fuel  in  mid-winter,  or  their 
daily  food,  and  the  idea  that  such  a  power  is  to  be  placed  in  the 
hands  of  a  combination  of  engineers  and  firemen  of  a  railroad  is 
not  to  be  tolerated  in  a  free  government,  where  each,  in  a  measure,  is 
dependent  upon  the  other  performing  his  social  duties  to  society. 

The  injury  to  the  public,  resulting  from  such  conduct,  cannot  be 
estimated,  and  it  is  respectfully  submitted  that  the  power  to  dictate  a 
strike,  or  inaugurate  a  strike,  by  the  committee  of  control,  or  the  cen- 
tral head  of  these  labor  organizations,  is  an  unmitigated  evil  to  the 
individual  members  of  the  organization,  by  depriving  them,  and  those 
dependent  upon  them,  of  the  means  of  support,  and  in  many  instances, 
compelling  individual  members  to  quit  their  jobs,  through  fear,  when 
their  judgment  and  interests  forbids  them  to  do  so. 

The  committee  of  control,  or  central  head,  exerciees  and  wields  the 
power  of  a  tvrant  with  a  despotic  energy  which  not  only  stops  the 
wheels  of  commerce  and  paralyzes  the  business  of  the  country,  but 
carries  destitution  and  want  to  the  homes  of  the  members  (»f  the 
organization  which  it  claims  to  protect.  Any  arrangement,  agree- 
ment or  organization  which  surrenders  individual  liberty  of  action, 


(18) 

and  the  free  exercise  of  individual  judgment  to  one  or  many,  is  a 
dangerous  device  for  free  men  to  subscribe  to,  who  are  seeking  to 
better  their  condition  financially  and  socially,  and  the  genius  of  free 
government  is  opposed  to  such  a  })olicy. 

By  the  submission  to  such  a  power,  the  laborer  and  employe  in 
advance  submits  to  a  species  of  slave  power  exercised  by  the  committee 
of  control,  or  central  head,  and  puts  fetters  of  iron  upon  his  ankles  and 
manacles  of  iron  upon  his  wrists  which  binds  him  to  the  pace  of  the 
slowest,  aud  removes  afar  off  the  day  when  he  shall  be  an  employer 
and  not  an  employe. 

This  power  of  the  committee  of  control,  or  central  head,  to  direct 
a  strike  among  laborers  of  any  class  is  wrong  and  dangerous. 
Every  laborer  should  retain  and  hold  more  sacred  than  life  itself, 
his  individual  liberty  of  action.  By  so  doing,  he  retains  in  his  own 
hands  the  ability  and  power  to  reach  higher  levels  and  a  better  for- 
tune, and  to  dictate  and  control  his  own  wages.  It  is  a  wronar — a 
self-inflicted  wrong — which  the  laborer  imj>oses  upon  himself,  when 
he  submits  to  a  power  other  than  his  own  judgment,  to  say  when  he 
shall  work,  and  when  he  shall  remain  idle. 

If  a  laborer  loses  a  day's  work,  it  is  gone  forever,  never  to  return. 
Not  so  with  capital ;  the  man  who  has  aud  holds  the  accumulated 
wealth,  may  lay  his  dollar  or  dollars  on  the  shelf  or  in  the  bank 
vault,  and  go  there  at  any  future  day  and  find  it  again,  but  a  day's 
labor  lost,  is  forever  lost,  and  the  loss  is  absolute. 

Capital,  in  the  establishment  of  great  trusts  or  combinations  by 
which  each  individual  industry  of  a  particular  kind  is  brought  un- 
der control  of  the  central  head,  has  set  an  example  dangerous  to  free 
government  and  individual  liberty,  by  the  submission  of  each  partic- 
ular industry  of  that  kind  to  the  control  of  the  central  head,  aud  it 
cannot  too  soon  recede  from  this  position  and  abandon  its  wrongful 
effort  to  control  prices  in  this  manner. 

Another  great  wrong  and  evil  has  been  brought  to  the  attention  of 
the  board — not  by  evidence  in  this  particular  case — but  in  cases 
A\'hich  have  come  to  their  knowledge. 

The  habit  or  practice  of  great  railroad  corporations  of  blacklisting 


(19) 

employes  who  had  oll'eudecl  the  managers,  and  of  noti lying  other 
railroad  companies,  and  these  companies  placing  the  names  of  such 
employes  on  the  "  black  list,"  and  refusing  them  employment.  This 
is  a  conspiracy,  and  is  condemned  by  the  law,  and  in  many  of  the 
cases  cited  in  this  report,  and  deserves  the  severest  condemnation,  and 
legislation,  making  such  conduct  a  penal  offense,  must  receive  the 
sanction  of  all  right-minded  men. 

O.  P.  MASON, 
Sec^y  State  Board  of  Transportation. 


Ip 


Gaylord  Bros.,  Inc. 

Makers 
Syracuse,  N.  Y. 

PH.  JAH  21,  t90e 


UNivERsrry  of  illinois-urbana 


3  0112  084206579 


